In case you missed my self-promotion yesterday, my new post a the CBA National Magazine’s blog is up. It argues that we need to change the ways in which we think about and study judicial ideology in Canada. Simply importing American models, which rely on using the party of the president who appointed a judge, or on the perceived ideological valence of judicial decisions, as a proxies for the individual judges’ ideological leanings does not work well in Canada, because our legal culture lacks parallels to “liberal” and “conservative” legal worldviews that have in the last few decades been so familiar south of the border.
One consequence of this is that Liberal and Conservative prime ministers draw on pretty much the same pool of candidates when picking their judicial appointees, making the prime minister’s party a (nearly?) useless proxy for judicial ideology. The other is that classifying case outcomes as “liberal” or “conservative,” already a fraught exercise in the United States ― think, for example, of the way in which freedom of religion, and especially religious exemptions, have gone from being a “liberal” cause along with other civil rights to a conservative one in recent years ― is an almost impossible one in Canada. In addition to my own examples from the Supreme Court’s federalism jurisprudence, Emmett Macfarlane ― who has studied and written about the ideological influences on the Supreme Court of Canada ― provided more solid evidence of this in his tweets responding to my post:
And yet, Canadian judges do have ideological preferences. Of course they do ― I have argued here that constitutional law in particular is inescapably ideological and, perhaps to a lesser degree, this is true of any other area of the law is well, although judges may be more constrained in areas where the applicable texts are more precise and the precedents more settled. It’s just that we tend not to notice these ideological preferences because most all Canadian judges share them ― again, because there are no “alternative” legal worldviews with any purchase in the Canadian legal community; in particular, as I have explained here, the Conservative party has not even tried developing a constitutional theory of its own.
In this recent essay, Bob Tarantino argues that Canadian conservatives and libertarians really need to do so, because
the law develops in an impoverished way if only “progressive” views dominate and inform decisions from the bench. For the vitality of the law to be maintained, judicial decision-making must be a crucible of debate over what the law is, its purpose and its application, from a variety of perspectives. When it is possible to immediately identify “progressive” judges, but impossible to identify “conservative” or “libertarian” judges, the bench and the law risk myopia and stagnation.
He is probably right, although more ideological diversity on the bench has costs as well as benefits, as we can see by looking at the American example. At a certain point, ideological conflict crosses the line between vitality and feverishness, and the law will suffer if it is seen, as American constitutional law may be in danger of being seen, as little more than a battleground for ideological and, worse, partisan conflict.
In any case, before we start advocating, we need to understand. And in order to understand the effects of ideology on Canadian courts, we need to change the ways in which we think about it.